Blind Desire: The Troubling Case of Gayle Newland

Today, at Manchester Crown Court, Gayle Newland was, after a second trial, convicted of three counts of the sexual offence of assault by penetration,[1] on the basis of ‘gender identity fraud.’[2] After serving eleven months of an eight year sentence, the Court of Appeal set aside her original conviction in 2015[3] because they found it to be ‘unsafe’ due to the summing up of trial judge, Roger Dutton.[4] In my view, prosecutions of this kind should not be commenced. My reasons for taking this stance include, but are not exhausted by, opposition to criminal law overreach (criminalisation of non-coercive, desire-led intimacy constitutes a step too far), and concern over legal inconsistency (contrast prosecution of gender non-conforming people for sexual fraud with the fact that deceptions, for example, as to wealth, social status, drug use, criminal convictions, religious belief and/or ethnic status produce no legal consequences), and discrimination (‘gender history’ is not only singled out for special legal attention, but it is the gender histories of LGBTQ kids, rather than people at large (for we all have gender histories), that appears to exhaust state interest in historical facts about gender).

However, in this article, I do not intend to focus on broader issues of legality and/or public policy. Rather, I want to highlight a theme neglected in discussions of R v Newland and other gender identity fraud cases to have come before the courts (R v Gemma Barker 2012,[5]R v Justine McNally 2013,[6]R v Chris Wilson 2013,[7]R v Kyran Lee (Mason) 2015,[8]R v Jason Staines 2016),[9] namely, the relationship between ignorance & knowledge or, in the specific context of sexual intimacy (the enmeshing of bodies), the relationship between how one imagines one’s object of desire & the experience of her body.

I want to ask, what it means to be ignorant in the face of knowledge? And to suggest that we think about ignorance, as Eve Sedgwick has argued,[10] as a form of knowledge, as a kind of learned unknowing, as something not so easily divorced from human agency? That is, we might think of ignorance as a form of disavowal, and in the present context, as a repudiation of the senses?

Let us begin by recalling the prosecution case. The complainant, who claimed to believe Newland was a man, admitted having sex with Newland on a least ten occasions and spending over one hundred hours in her company, sometimes at the complainant’s apartment, sometimes at a local hotel. She claimed to be unaware of the truth about Newland’s gender identity due to a blindfold worn on all occasions at Newland’s request (Newland, who identifies as lesbian, disputed both of these claims). The complainant’s other senses, apparently, also deserted her. Thus her sense of touch proved insensitive to the contours and smooth surface of Newland’s body, which had not been masculinised through testosterone administration, to Newland’s long hair which reaches the mid of her back, and to the prosthetic penis which Newland used, while her sense of hearing proved impervious to Newland’s voice which falls within the female range.

Moreover, on her own evidence, the complainant became ‘best friends’ with Newland, as Gayle, while simultaneously conducting a boyfriend/girlfriend relationship with Newland, in the guise of Kye Fortune, Newland’s Facebook avatar, and continued to see both on a regular basis and for a period of at least eighteen months without ever appreciating they were the same person.

It is not my intention here to dispute the veracity of the complainant’s testimony. Rather, I want to ask, what it means to say, in contexts of sexual intimacy, that we do not know the object of our desire, especially where our body becomes entangled with theirs and, in this case, where the complainant conducted a parallel platonic relationship? Thus, even if we accept, as both juries did, that Gayle Newland deceived the complainant, and that the complainant remained ignorant of Newland’s gender identity, is it not also true that ignorance is a form of knowledge, one which implicates human agency?

If we do not see our lover’s face, do we not sense her in other ways? Do we not breath her in, feel her touch, experience the contours of her body, feel her breath upon our skin, the timbre of her voice? And are we not undone in such moments, irrespective of the eyes? Is it right in such circumstances to disown our desires because we are retrospectively disappointed? How can we claim ignorance of participation in lesbian sex when the presence of a female lover has taken the form of sensory overload?

In other words, there is something inadequate about the way we discuss gender identity fraud cases. Rather than fixating on deception, we might instead consider more seriously the complex relationship between ignorance and knowledge. That is, even if deceived, we should acknowledge information that arrives through our senses, calling us to respond, and to which we do respond. Might it be the case that gender identity fraud prosecutions tell us less about deception, and more about a refusal to acknowledge embodied experiences, apparently at odds with our desires, and the pleasures we derive from them? Ultimately perhaps, the Newland case points to a refusal to acknowledge that all (not merely blindfolded) desire is blind? If this is so, then Gayle Newland’s conviction points to a failure of that other blindfolded figure, the one to which we all appeal, justice.

Alex Sharpe is Professor of Law at Keele University and a human rights barrister at Garden Court Chambers, London. Twitter @alexsharpe64

Her new book, Sexual Intimacy and Gender identity ‘Fraud’: Reframing the Legal & Ethical Debate will be published by Routledge in January 2018.

[1] Section 2, Sexual Offences Act 2003. Two counts related to prosthetic and the third to oral penetration.

i don’t know to what degree what happened in this case was wrong in a legal sense. i don’t think she got a fair sentence. i was far more interested in the complainant. it’s clear as to what issues gayle newland has. but this whole thing raises a whole lot more questions about the complainant and who she is than it does about gayle newland. i was thinking the same things myself here. she sounds like she was willing to be tricked, then probably became ashamed of herself and rather than accept some responsibility she feigned ignorance and pinned it all on gayle newland. who agrees to meet somebody who they are supposedly potentially interested in sexually, and only while they are blindfolded the whole time ??? and then, on top of that, how could they be “fooled” like that, again and again, in an intimate sexual situation, without knowing what was really happening ? she was already familiar with who gayle newland was, and she didn’t know it was her ????? sorry, but no.

it is a fascinating case, and it’s clear that both of these girls have issues that need to be addressed.

We don’t seem to be tremendously happy with sex at all in this country. I am perturbed by her imprisonment, and a legal system motivated by personal enhancement allowing her to be prosecuted in the first place, legislation ill-fitting. I lived in Italy for 20 years, discussion of sex being akin to that of the weather, similarly inconsequential. Many, many British are similar, but some, notably in high places, seem to lack a basic understanding of it, anatomy included. My surviving parent regards the oral variety as an unspeakable disgrace, for instance (I am 58), despite it being an indispensible element of many loving relationships, enjoyed by those of all orientations and identities.

Before reading Alex’s article, I wrote this on Facebook:

“The case of Gayle Newland I find quite worrying. Her victim was inexperienced, but I have the impression she might have gathered the following, instinctively:

1) That she was in the presence of another woman. I have friends ranging from the most feminine of sorts to the lesbian domme of hard-nosed repute. They are all, quite unmistakably, female. It doesn’t matter if they wear no perfume, no makeup, haven’t washed for a year, there are just so many things about them that are female.

2) Perhaps less important, details of the case not being known to me, the use of prosthetic apparatus possibly assumed on account of professed injury, but to be said: The male organ is not a muscular device, it has no wiggle capacity, the limited amount of animated sensation it can produce possibly unknown to the inexperienced. It can, so, be simulated, and, I believe, quite realistically regarding its texture. A person agreeing to have their hands tied behind them during congress, and generally allowed no manual contact, unusual conduct for an innocent as this strikes me, having, perhaps, more difficulty discerning this. However:

2.1) It has payload, this being something, I think, well-known to a lady. A young gentleman being able to deliver this in quite unignorable quantity. Projectile in nature, it can easily hit walls and ceilings. It is discerned inside. It makes your underwear uncomfortable, is generally rather messy, and is likely to have been discussed in some depth among your friends.

2.2) Upon delivery of the above, the organ has the habit of becoming somewhat different in its composition, wilting, even if only temporarily, in the case of an enthusiastic young lover, in a way not really possible in plastic alternatives.

Sex education was very thin when I was young, but I simply woke up one day, during puberty, with a rough understanding of the anatomy of the girl. Ladies being at the same, advanced, state of evolution, are, I imagine, similarly briefed, other members of the animal kingdom having no need for dad’s porno mags or awkward classrooms.”